946 F.2d 1481
9th Cir.
1991

Lead Opinion

The Opinion filed in this case on January 14, 1991, 923 F.2d 688 (9th Cir.1991), is vacated. As an alternative to the stay requested by the parties, within thirty days of the entry of this order the court will dismiss the petition for review without prejudice to reinstatement. Any objections to the dismissal without prejudice shall be filed within twenty-one days of the entry of this order. If no objection is filed, the petition will be dismissed without further notice.

To preserve the automatic stay under 8 U.S.C. § 1105a(a)(3), the mandate will be withheld until termination of any administrative proceedings affecting appellant Eeheverria-Hernandez commenced pursuant to the settlement agreement in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal.1991), or the Immigration Act of 1990 (Pub.L. No. 101-649), or until further order of this court. The parties are instructed promptly to advise the court of any change in circumstances that might moot the petition for review or otherwise make it appropriate to issue the mandate.





Dissenting Opinion

WALLACE, Chief Judge, with whom Circuit Judges CYNTHIA HOLCOMB HALL, BRUNETTI, DAVID R. THOMPSON, and FERNANDEZ join,

dissenting:

Our court has adopted an administrative policy that, once cases such as this are in the jurisdiction of a panel, the panel has the discretion to stay or decide the appeal and file a disposition. I assume the same policy applies to an en banc court.

The panel, for good reasons, decided not to stay. The majority of the en banc court believes we should. I disagree and would not stay the appeal or dismiss the petition.